Guwahati: A Public Interest Litigation (PIL) filed in the Supreme Court by leading Assamese intellectuals argues that the Union home ministry notifications for granting citizenship to a section of refugees and migrants from the neighbouring countries contravenes not only some articles but the very “basic structure” of the Constitution.

The 85-page petition, submitted by the Hiren Gohain-led Nagarikatwa Aain Songsudhan Birodhi Mancha (Forum Against Citizenship Act Amendment Bill) makes a case for the declaration of the three notifications by the ministry as “illegal and invalid, being, ultra-vires the Constitution of India.”

In 2015, the ministry issued two notifications – Foreigners (Amendment) Order, 2015 and the Passport (Entry into India) Amendment Rules, 2015 – exempting six non-Muslim communities from Afghanistan, Bangladesh and Pakistan from the application of Foreigners Act, 1946. The rules would apply to refugees who were compelled to seek shelter in India due to religious persecution or fear of religious persecution and who entered the country before December 31, 2014.

Again in 2016, the ministry issued an order to register the refugees as citizens or for grant of certificates of naturalisation under the Citizenship Act, 1955 residing in some districts in Chhattisgarh, Gujarat, Madhya Pradesh, Maharashtra, Rajasthan and Uttar Pradesh and Union territory of Delhi.

On January 14, the Supreme Court decided to adjourn the hearing of the PIL on the plea that the Bill was pending in the Rajya Sabha after it was passed in the Lok Sabha. Chief Justice Ranjan Gogoi was quoted by the media as saying that the best option was to keep it pending till parliament decides on the matter.

The petition gives a chronology of all important events in Assam beginning from the Treaty of Yandaboo in 1826 which ended the Ahom rule, to the current developments while also discussing the social, economic and political consequences of illegal migration in the state. It has listed the ministries of home affairs, external affairs and the government of Assam as respondents in the case.

Against the ‘basic structure’ of Constitution

The concept of “basic structure” of the Constitution was propounded by the Supreme Court for the first time in the historic Kesavananda Bharti Versus State of Kerala in 1973 case and reiterated it in S.R. Bommai vs Union of India case in 1994.

According to the doctrine, the Constitution has certain features that cannot be tampered with or destroyed through amendment by parliament which includes supremacy of the Constitution, democratic and republican form of government, secular and federal character of the Constitution and separation of powers between the legislature, judiciary and the executive.

“Therefore, any legislation that fails the test of the ‘basic structure’ is unconstitutional,” the PIL said, adding, “The impugned legislations threaten the foundation of India’s plural polity, where every citizen, regardless of his religious identity, is equal to every other in his enjoyment of the rights the Constitution confers on him.”

Hiren Gohain. Credit: YouTube

Citizenship Act can be amended only by parliament

The PIL also terms the notifications “illegal” since it is only parliament that can make a law on acquisition and termination of citizenship as enshrined in Article 11 of the Constitution. Therefore, the definition of ‘illegal migrant’ as defined in the Citizenship Act, 1955 cannot be overridden by an executive fiat.

The fallout, the PIL points out, has been the dilution of the meaning of “illegal migrant” as defined in the Act which is a clear case of ‘conflict between a substantive legislation and a subordinate legislation’. “In this view of the matter the impugned legislation being ultra-vires, the Act is not sustainable in law and hence deserves to be set aside and quashed.”

The PIL says never before has religion been taken as a ground for distinguishing between citizens and non-citizens in the country. The notifications have introduced religion as a “new principle” into the citizenship law, which can be branded as ‘communally motivated humanitarianism’.

Notifications violate Assam Accord and NRC

The signatories, including senior journalist Manjit Mahanta and former Assam police chief Hare Krishna Deka, contended that the notifications violated the Assam Accord, which treated all refugees and migrants who entered the state after March 1971 as ‘illegal immigrants’ irrespective of their religion. It said that the amendments not only defeat the purpose of the Accord, but open the “floodgates” to undocumented immigration to Assam.

And, therefore, the new laws would also adversely impact the update of the National Register of Citizens (NRC), an exercise to identify Indian citizens residing in the state. The exercise, which is also being monitored by the Supreme Court, is expected to be completed in June. The PIL is of the unequivocal opinion that the process would be derailed since a large section of undocumented migrants who would be left out of the register would be able to acquire citizenship on account of the new citizenship laws.

The petition underscored that the notifications have hindered the process of identifying undocumented migrants in Assam, a long process involving the border police, foreigners’ tribunals and the Election Commission. It mentioned that in some cases, the courts have acquitted migrants even after submission of evidence against them by the prosecution.